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Thursday, 10 September 2015

Whether ” illicit intercourse ” within the meaning of S 373 of IPC should be for the purpose of “prostitution”?

Going by Explanation II to Section 372 of the Indian PenalCode, sexual intercourse between persons not united by marriage or byany union or tie constituting a quasi marital relation would amount toillicit intercourse. That definition is incorporated into Section 373 of theIndian Penal Code by the specific mention to that effect in Explanation IItherein. Section 373 of the Indian Penal Code applies where anyperson buys, hires or otherwise obtains possession of any person underthe age of eighteen years. Such act should be with the intent that theperson concerned (victim) shall at any age be employed or used for thepurposes mentioned in the Section. The purposes mentioned in theSection are: (a) prostitution; (b) illicit intercourse; or (c) any unlawful andimmoral purpose. To attract Section 373 IPC, it is not always necessarythat such intent must be established. It is sufficient if the offenderknows it to be likely that such person (victim) will at any age beemployed or used for any purpose mentioned in the Section. Theexpressions "prostitution" and "illicit intercourse" are not usedconjunctively in Section 373, but they are used disjunctively. The "illicitintercourse" within the meaning of Section 373 IPC need not be in theprocess of prostitution. Even in the absence of prostitution, an illicitintercourse would amount to an offence under Section 373 of the IndianPenal Code, provided the other essential conditions are satisfied. The

contention that unless the victim is employed for prostitution, theprocurer is not guilty even if he had illicit intercourse with the victim, isabsolutely unsustainable, going by the ingredients of Section 373 of theIndian Penal Code. The contention put forward by the learned counselthat Explanation I to Section 373 would lend support to the contentionthat illicit intercourse must be for the purpose of prostitution, is alsowithout substance. Explanation I provides for a presumption that anyprostitute or any person keeping or managing a brothel shall bepresumed to have obtained possession of the female under the age ofeighteen years with intent that she shall be used for the purpose ofprostitution. The presumption under Explanation I does not lead to theconclusion that "illicit intercourse" within the meaning of Section 373should be in the process of or for the purpose of or as part ofprostitution.